By: Jery Payne
Imagine you are a judge hearing a case. The Raptor Commission has awarded a cash grant to the Raptor Education Association. Unfortunately for the association, the commission did not have a quorum when it voted to award the grant. The Raptor Recovery Foundation had also applied for the grant and is now suing. The foundation wants the illegal grant repaid and the commission to award the grant again. The foundation cites a provision that states, "There shall be a quorum for the committee to do business." The foundation argues, therefore, that the grant was void and must be repaid because it violated the law. The association replies that the word "shall" means that the commission had a duty to have a quorum to do business. "Shall" the association argues, "is well established as a command; therefore, the commission had a duty to form a quorum. The failure of the commission to obey the law does not, and indeed should not under the rules of agency, void the commission's actions. The proper defendant in this case is the commission, not the association, because the commission, not the association, violated the rule." The question you need to answer is: "Does the Raptor Education Association have to repay the grant?"
How do you decide? Under the rules of standard English, the grant was not void.(1) "Shall" is used as a command, and a command creates a duty. Therefore, the violator is at fault. If anyone has violated the law, it is the commissioners who made the grant without a quorum. The association did not violate the law. The commissioners are at fault.
On the other hand, most people intuitively feel that the drafter intended to withhold authority unless a quorum existed rather than punish the commissioners. In such cases, courts have held that this use is merely a legislative aspiration, nothing more. After all, a violation without a punishment does little. As a judge, do you guess at the real intent of the drafter and write your own provision into the text? Or do you simply apply the law as written?
"Ha," the skeptic might say, "a good drafter avoids passive voice, and this really is a problem of passive voice." Look at the provision again: "There shall be a quorum." It is not passive. Contrary to popular belief, the mere presence of a to-be verb does not make a sentence passive. "I am happy." is not passive.(2) The essential elements of passive voice are both the to-be verb and a past participle. The provision does not contain a past participle. In a passive sentence, the subject is acted upon. But in an active sentence, the subject acts or exists. For example, "Caesar was stabbed by Brutus" is passive. "Brutus stabbed Caesar" is active. Nothing is acting upon the subject of "There shall be a quorum." The sentence is not passive.
No, the real problem is the use of the false imperative. False imperatives cause problems for one simple reason: they are nonsense. I do not use the word "nonsense" to cast a vague disparagement. I use the word "nonsense" literally. The imperative appears to command when it does not. One cannot command an abstraction, such as a quorum, to bring itself into existence. A false imperative is a lapse in English usage because it is illogical.
The false imperative is the problem. At a minimum, it creates a duty but fails to specify who has the duty and what are the consequences of failure. But this failure to provide specifics is not the heart of the problem. The underlying problem is that the drafter did not really intend to create a duty. When a drafter actually intends to create a duty, the drafter typically will create consequences. The drafter probably intended to withhold authority until certain conditions were met. If the drafter had jettisoned "shall," the draft would have been better thought out: "The acts of the commission are void unless a quorum votes on the action."
"Ah," the skeptic might say, "maybe we want to create a duty that the commission not act unless it has a quorum. The law should be binding." Maybe. An example may help. Consider the following statute: "The meeting shall not be held unless a quorum is present consisting of not less than one half of the voting members of the vacancy committee." (3) This provision does not provide any penalties for meeting without a quorum, so it is useless. How can the drafter really intend to punish the members of the committee when no punishment is specified? But it is worse: This section deals with vacancies for public office. Did the drafter really mean to allow a candidate to be chosen for office without a quorum of the committee? I doubt it. After all, such a process could choose multiple office holders for the same office.
Few things mortify a drafter more than the thought that a court will apply a statute incorrectly. A drafter writes expecting the words to achieve a legal result. For a drafter to predict how a court will apply a statute, the drafter must be able to predict how the court will interpret the words of the statute. A drafter writes to achieve a goal. This goal requires effective communication to those who will apply the rule, typically the judiciary. Whether the statute will achieve the desired goal depends upon the judiciary understanding the words.
If the drafter writes "shall" or any other word, the drafter is predicting that it will invoke a specific result. These predictions require words to be used and applied consistently. If a word could produce three results, how can the drafter know that the judge will apply the correct result? Therefore, a drafter strives for consistent and proper usage.
Few distinctions are more important to statutory drafting than the distinction between "shall" and "may." "Shall" is a command. "May" authorizes. How can a drafter effectively communicate with the judiciary when "shall" and "may" are interchangeable? The false imperative frequently muddles this basic and important distinction.
Consider the case of Gutierrez de Martinez v. Lamagno, (4) where the U.S. Supreme Court held that "shall" means "may." Here is the language the court was construing:
"Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant." 28 U.S.C. §2679(d)(1).
There are two false imperatives in this provision. At issue was whether a court had discretion to rule on the validity of the attorney general's certification. Maybe the drafter intended to deny the court discretion to rule against one of the parties so that the other side always won. If so, the drafter's intention was thwarted by the Supreme Court because the court could not believe that Congress intended to provoke a constitutional question in this manner. We do not know if the section binds the court or creates a procedure. The drafter has failed to effectively communicate.
Maybe the drafter intend the opposite, mainly to allow the court this discretion. If the drafter did not intend to provoke a constitutional question in this manner, the drafter should have been clear about what is discretionary, what is mandatory and who bears the duty. The drafter should have been clear that a court may rule on the validity of the certification, avoiding needless litigation and uncertainty. More importantly, the court would not have had to rule that "shall" actually means "may," muddling this important distinction. False imperatives are frequently shortcuts that mask important issues.
Regardless of the drafter's intent, the first step to solving the problem is to delete the false imperatives. Ask not why the court interpreted "shall" to mean "may;" ask why the court needed to interpret "shall" to mean "may." Blame it not on the court; blame it on the false imperative.
"Ah," the skeptic might say, "the attorneys in this office are pretty sophisticated when it comes to language. If they have not mastered the intricacies of this by now, then there is no hope of changing now." This objection is common, but it cuts both ways. Certain drafters in Australia, the United Kingdom, and Canada have determined that drafters cannot be trusted to correctly use the word "shall" and have forbidden its use. (5) They believe that requiring a drafter to write the statute another way makes the end product superior. As Wayne Schiess asks, "Did you know that 'shall' is the most misused word in all of legal language?" (6) But I think there is a solution that is simple in principle, if not always in execution.
The solution to avoiding the false imperative is to substitute a short definition in place of the imperative to determine if it makes sense. If the drafter would make the following mental substitutions, then the language will remain logical:
shall: has a duty to
shall not: has a duty not to
If the drafter is considering using "shall" or "shall not," the drafter need merely substitute the definition and consider whether the definition makes sense. For example, "The commission shall keep a cash reserve," reads "The commission has a duty to keep a cash reserve." If the substitute phrase makes sense, then the use is proper. Here is another example, "Service shall be made on the parties," reads "Service has a duty to be made on the parties." This is nonsense. Service does not have volition. Service cannot even exist until it is made. Therefore, it is a command that service bring itself into existence. This provision needs to be rewritten.
1. Tobias A Dorsey, Legislative Drafter's Deskbook: A Practical Guide, §6.56, 193-5 (2006).
2. Bryan A Garner, Garner on Language and Writing 52 (2009).
3. Colorado Revised Statutes §1 12 206 (2010).
4. Gutierrez de Martinez v. Lamagno 515 U.S. 417 (1995).
5. Bryan A Garner, Garner on Language and Writing 174-5 (2009).
6. Wayne Schiess